Endangered Species Law & Policy

On December 10, 2024, the U.S. Fish and Wildlife Service (Service) released its long-anticipated listing proposal for the monarch butterfly (Danaus plexippus), along with a proposed critical habitat designation and species-specific 4(d) rule (Proposed Rule). The Proposed Rule indicates the public comment period closes on March 12, 2025.

The Service has proposed listing the monarch as threatened primarily as a result of threats from past and ongoing loss and degradation of breeding, migratory, and overwintering habitat, exposure to insecticides, and the effects of climate ...

Today, the U.S. Fish and Wildlife Service (Service) announced it had opened status reviews for 38 species of plants, wildlife, and fish endemic to Texas, New Mexico and Arizona (Southwest Species). Section 4(c) of the Endangered Species Act (ESA) requires the Service to evaluate the status of species listed as threatened and endangered at least once every five years (5-year Review) and determine, based on that evaluation, whether any such species should be delisted, downlisted (from endangered to threatened), … 

On June 27, 2024, the U.S. Fish and Wildlife Service (Service) issued a final rule listing the Suwannee alligator snapping turtle (Macrochelids suwanniensis) as a threatened species with a 4(d) rule under the Endangered Species Act (ESA).

The Suwannee alligator snapping turtle is a large, freshwater turtle species occurring in the Suwannee River basin in Florida and Georgia. The species’ listing follows a 2012 petition filed by the Center for Biological Diversity to list 53 amphibians and reptiles, including the alligator snapping turtle (Macrochelys temminckii), which, due ...

Today, the U.S. Fish and Wildlife Service (Service) and Center for Biological Diversity entered into a settlement agreement wherein the Service agreed to submit to the Federal Register final listing decisions on the following six mussel species no later than May 23, 2024:

• Texas fatmucket (Lampsilis bracteate);
• Guadalupe fatmucket (Lampsilis bergmanni);
• Texas fawnsfoot (Truncilla macrodon);
• Texas pimpleback (Cyclonaias (= Quadrula) petrina);
• Guadalupe orb (Cyclonaias necki); and
• False spike (Fusconaia (= Quincuncina) mitchelli).

As Nossaman previously reported, on ...

On March 27, 2024, the U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) (collectively, the Services) made available pre-publication versions of the agencies’ long-awaited updates to regulations implementing sections 4 and 7 of the Endangered Species Act (ESA). The Services have finalized joint rules addressing interagency consultation requirements under ESA section 7 and the procedures for listing, reclassifying, delisting, and designating critical habitat for species under ESA section 4; and USFWS has finalized its reinstatement of ...

As previously reported, on December 6, the Biden Administration published the Fall 2023 Unified Agenda of Regulatory and Deregulatory Actions (Unified Agenda), outlining the various regulatory and deregulatory actions the Biden Administration plans to take in the near future. Among the Unified Agenda entries are numerous U.S. Fish and Wildlife Service (Service) actions to propose or finalize endangered and threatened species listings and critical habitat designations under the Endangered Species Act (ESA). Below is a sampling of potential species listings and critical ...

As we have previously reported, on December 6, the Biden Administration released the Fall 2023 Unified Agenda of Regulatory and Deregulatory Actions (Unified Agenda). The Unified Agenda, published twice a year, lists the upcoming rulemakings, policies, notices, revisions, and other actions that federal executive agencies plan to complete over the next several months. This most recent iteration of the Unified Agenda is notable in that it represents the slate of actions the Biden Administration hopes to complete in advance of a potential change in administrations … 

As we have previously reported, on December 6, the Biden Administration released the Fall 2023 Unified Agenda of Regulatory and Deregulatory Actions (Unified Agenda), which lists the regulatory and deregulatory actions that federal administrative agencies—including the U.S. Fish and Wildlife Service (Service)—plan to take in the coming year. According to the Unified Agenda, the western United States can expect a number of proposed and final rules to list species as threatened or endangered under the Endangered Species Act (ESA) and to designate critical habitat ...

On November 30, 2023, the U.S. Fish and Wildlife Service (Service) published a final rule listing a distinct population segment (DPS) of the North American wolverine (Gulo gulo luscas) as a threatened species under the Endangered Species Act (ESA). The wolverine is a medium-sized carnivore found in Alaska, Canada and the western-northwestern United States. The current listing is limited to the DPS of wolverine occurring in the contiguous United States. In the Federal Register notice … 

On September 30, 2023, the U.S. District Court for the District of Columbia granted summary judgment in favor of the U.S. Fish and Wildlife Service (Service) in a case challenging the agency’s final rule downlisting the American burying beetle (Nicrophorus americanus) to “threatened species” status under the Endangered Species Act (ESA).

In its opinion, the court held that the Service adhered to a reasonable interpretation of the ESA and followed proper procedures when deciding to downlist the American burying beetle to threatened status despite noting climate change ...

On October 3, 2023, the U.S. Fish and Wildlife Service (Service) published two proposed rules to list three species—the northwestern pond turtle (Actinemys marmorata), the southwestern pond turtle (Actinemys pallida), and the short-tailed snake (Lampropeltis extenuata)—as threatened under the Endangered Species Act (ESA). The proposed listings also include proposed 4(d) rules for each species. However, according to the Federal Register notices, the Service concluded that designating critical habitat for each of the three species is not currently determinable, and ...

On August 29, 2023, the U.S. Fish and Wildlife Service (Service) published a final rule listing two distinct population segments (DPS)—the North Feather and Central Coast DPSs—of the foothill yellow-legged frog (Rana boylii) (Frog) as threatened (Threatened DPSs) and two additional DPSs of the Frog—the South Sierra and South Coast DPSs—as endangered (Endangered DPSs) under the Endangered Species Act (ESA). In the preamble to the final rule, the Service indicated that designating critical habitat for all four DPSs of the Frog is not determinable at this time due to a lack ...

On May 15, 2023, the U.S. Fish and Wildlife Service (Service) issued two mitigation policies: one titled “Mitigation Policy” and another titled “Endangered Species Act Compensatory Mitigation Policy.” The Mitigation Policy provides a framework to inform Service mitigation procedure and policy, while the Endangered Species Act (ESA) Compensatory Mitigation Policy provides guidance on implementation of the ESA through compensatory mitigation mechanisms. The Service states that both policies are intended as guidelines for Service personnel to follow when ...

On April 13, 2023, the United States Fish and Wildlife Service (“Service”) published a proposed rule to revise the critical habitat designation for the rufa red knot (Calidris canutus rufa). The red knot is a shorebird that migrates annually between the Canadian Arctic and wintering regions to the south, including the Southeast United States, the Northeast Gulf of Mexico, northern Brazil, and Tierra del Fuego at the southern tip of South America. During both northbound (spring) and southbound (fall) migrations, red knots use key staging and stopover areas to rest and feed.  

The ...

On April 11, 2023, the U.S. Fish and Wildlife Service (Service) issued a final rule listing the bracted twistflower (Streptanthus bracteatus), a wildflower native to Texas, as threatened with a rule issued under section 4(d) of the Endangered Species Act (ESA). The Service also finalized a critical habitat designation for the species spanning approximately 1,596 acres in the Texas counties of Uvalde, Medina, Bexar, and Travis. The critical habitat designation consists of almost entirely public land, with the exception of approximately 63 acres of privately owned land (however ...

On March 9, the U.S. Fish and Wildlife Service (Service) issued its 12-month finding that listing Joshua trees (Yucca brevifolia and Y. jaegeriana) as endangered or threatened species under the Endangered Species Act (ESA) is not warranted. The 12-month finding was made to comply with a September 20, 2021 court-ordered remand of the Service’s previous “not warranted” finding in August 2019.

In September 2015, WildEarth Guardians submitted a petition to list the Joshua trees as threatened and, if applicable, designate critical habitat for the species. The Service issued ...

On January 24, 2023, the U.S. Fish and Wildlife Service (Service) proposed to designate approximately 104 river miles as critical habitat for the sickle darter (Percina williamsi) under the Endangered Species Act (ESA). The critical habitat designation would be divided into six areas—Little River, Emory River and Rock Creek, Copper Creek, North Fork Holston River, Middle Fork Holston River, and Sequatchie River—which together span Bledsoe, Blount, Morgan, and Roane Counties in Tennessee, and Scott, Smyth, and Washington Counties in Virginia. Nearly 80 percent of the ...

On November 30, 2022, the U.S. Fish and Wildlife Service (Service) issued a final rule listing the northern long-eared bat (NLEB) (Myotis septentrionalis) as an endangered species under Section 4 of the Endangered Species Act (ESA), reclassifying it from its former threatened status and rescinding its section 4(d) rule. In determining whether to list the NLEB, the Service looked to factor C of ESA section 4, which requires the Service to make a listing determination if “disease or predation” poses a threat to the species. The Service cited the impacts of white nose syndrome (WNS ...

On October 18, 2022, the U.S. Fish and Wildlife Service (Service) announced 12-month findings on a petition to list three California-based salamander species under the Endangered Species Act (ESA): the Kern Plateau salamander (Batrachoseps robustus), the Kern Canyon slender salamander (Batrachoseps simatus), and the relictual slender salamander (Batrachoseps relictus). All three salamander species occur in the southern Sierra Nevada Mountains in California. The Service determined that listing the Kern Canyon slender salamander and the relictual slender salamander is ...

On August 25, 2022, the U.S. Fish and Wildlife Service (Service) filed a stipulated settlement agreement (Agreement) in a case challenging the agency’s failure to timely make a 12-month finding on a petition to list the dunes sagebrush lizard (Scleroperus arenicolus) (Petition). Under the Agreement, the Service will submit a 12-month finding on the Petition to the Federal Register no later than June 29, 2023. The 12-month finding will determine whether listing the species is warranted (and will simultaneously issue a proposed rule to list the species), whether listing the ...

On July 5, 2022, the U.S. District Court for the Northern District of California issued an order vacating three Trump-era regulations implementing the Endangered Species Act (“ESA”).

In 2019, the U.S. Fish and Wildlife Service (“USFWS”) and the National Marine Fisheries Service (collectively, the “Services”) issued three final rules (“2019 ESA Rules”) modifying how the Services implement the ESA, including: (1) a rule under section 4 of the ESA concerning how the Services list, delist, and reclassify endangered or threatened species and the criteria for ...

On June 16, 2022, a vote by the California Fish and Game Commission (Commission) on whether the Western Joshua tree (Yucca brevifolia) should be listed as threatened under the California Endangered Species Act (CESA) resulted in a 2-2 tie. Pursuant to the Commission’s rules, the Western Joshua tree will remain a “candidate” under CESA and the issue will be taken up again at a subsequent Commission meeting. The Commission will take up the Western Joshua tree’s listing status at the agency’s October 12-13, 2022 meeting and will re-open the comment period on the species’ ...

Last week, a decision out of the U.S. District Court for the Northern District of California restored Endangered Species Act (ESA) protections for the gray wolf (Canis lupus) across most of the contiguous United States.

In 2020, the U.S. Fish and Wildlife Service (Service) issued a final rule removing federal protections for the last two remaining gray wolf entities listed as threatened or endangered under the ESA.  The final rule asserted delisting was warranted because neither the Minnesota entity nor the 44-state entity qualified as a species, subspecies, or distinct population ...

The U.S. Fish and Wildlife Service (Service) has issued a final rule listing the Panama City crayfish (Procambarus econfinae) as threatened under the Endangered Species Act (ESA), along with a section 4(d) rule limiting take of the species.  The final rule also includes a designation of eight units of critical habitat, totaling approximately 4,138 acres, in Bay County, Florida.

The Panama City crayfish is a small, semi-terrestrial crayfish that grows to about two inches in length (minus claws), and is found in southcentral Bay County, Florida.  The species’ color pattern ...

On December 22, 2021, the U.S. Fish and Wildlife Service (Service) proposed to list the cactus ferruginous pygmy owl (Glaucidium brasilianum cactorum) (Owl) as threatened under the Endangered Species Act (ESA) primarily due to threats from climate change and habitat loss and fragmentation. The Service has also proposed to issue an ESA section 4(d) rule which would prohibit “take” of the Owl in most cases, while exempting from the prohibition certain land management activities compatible with restoration and improvement of Owl habitat where such activities have been ...

On December 10, 2021, the Biden Administration released the Fall 2021 Unified Agenda of Regulatory and Deregulatory Actions (Unified Agenda), which is a semi-annual compilation of information concerning regulations and policy under development by federal agencies. Department of the Interior (DOI) entries on the Unified Agenda reveal a lengthy set of planned regulatory actions, some of which may have an impact on development and deployment of energy, construction and operation of transportation and other infrastructure, and various other economic activities. … 

On July 13, the U.S. Fish and Wildlife Service (Service) published a proposed rule to designate critical habitat for the pearl darter (Percina aurora) under the federal Endangered Species Act (ESA).  Listed as a threatened species under the ESA in September 2017, the pearl darter is a small, snub-nosed fish whose historical range includes Mississippi and Louisiana.  The proposed critical habitat designation for the pearl darter includes a total of approximately 517 river miles along the Pascagoula River and Pearl River basins, which run across multiple counties in ...

In an article published this week in California Fish and Wildlife, co-authors Stephanie Clark, Ashley Remillard and I provide an overview of the process of determining whether to list species as threatened or endangered, and thereby protect them, under the California Endangered Species Act (CESA). Listing is the gateway to protection under CESA. The process is analogous to listing under the federal Endangered Species Act in certain respects but it also differs in a number of respects, perhaps the most important being that the decision whether to list a species is made by the Fish and ...

On June 7, 2021, the U.S. Supreme Court (“SCOTUS”) agreed with the Department of Justice and declined to hear a case brought by the Kansas Natural Resource Coalition (Coalition) challenging the U.S. Fish and Wildlife Service’s (Service) failure to submit the Policy for the Evaluation of Conservation Efforts (PECE) Policy to Congress under the Congressional Review Act (CRA).  The case, which represents a unique intersection between the lesser prairie-chicken (Tympanuchus pallidicinctus) (LEPC), the Service’s PECE Policy, and the CRA, appears to foreclose the ability ...

The U.S. Fish and Wildlife Service (USFWS) has announced the next chapter in the lesser prairie chicken’s (Tympanuchus pallidicinctus) (LEPC) tumultuous listing history. On May 26, 2021 the USFWS announced that it will propose a rule to establish a Northern distinct population segment (DPS) and a Southern DPS of the LEPC.  USFWS has proposed to list the Southern DPS – consisting of portions of New Mexico and Texas – as endangered. If finalized, the ESA take prohibition would apply across the Southern DPS without exception. The USFWS proposes to list the Northern DPS ...

The United States Fish and Wildlife Service ("Service") recently released a pre-publication version of its final rule to reclassify the American burying beetle (Nicrophorus americanus) from endangered to threatened under the Endangered Species Act (“ESA”).  The final rule will also include 4(d) rule provisions that specify when the ESA section 9 take prohibitions will apply to the beetle.

The American burying beetle, which gets its name from its tendency to burrow under vegetation or into soil during the daytime and throughout the winter hibernation season, is the largest ...

A pair of non-profit organizations recently served a 60-day notice of intent (Notice) to file a citizen suit against Hilton Hotels, Bahia Mar Resorts, and the Suntex Marinas (collectively, the Resorts) under section 9 of the Endangered Species Act (ESA) for the alleged take of the loggerhead sea turtle (Caretta caretta) and green sea turtle (Chelonia mydas) in Florida. ESA section 9 prohibits the unpermitted “take” of any endangered species, and the ESA defines “take” as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect,” or an attempt to do ...

On August 19, 2020, the U.S. Fish and Wildlife Service (Service) published a proposed rule that would remove the Stephens’ kangaroo rat (Dipodomys stephensi) from the federal list of Endangered Species. The proposed rule would, instead, list the kangaroo rat as threatened under the Endangered Species Act (ESA), and would provide a rule under ESA section 4(d) to provide for conservation of the kangaroo rat.

The Stephens’ kangaroo rat was originally listed as an endangered species in 1988. It is a small, nocturnal mammal, with external cheek pouches, large hind legs, a long tail ...

On October 7, 2019, the U.S. Fish and Wildlife Service (FWS) published a notice in the Federal Register announcing the agency’s 12-month findings that a dozen species are not warranted for listing as endangered or threatened species under the Endangered Species Act (ESA).  In particular, the FWS decided not to list the yellow-cedar (Callitropsis nootkatensis), a slow-growing but commercially in-demand tree that occurs from southern Alaska to northern California.  According to the FWS, yellow-cedars can live 500 to 700 years, with some individuals documented up to 1,600 years ...

On April 19, 2018, the California Fish and Game Commission voted 4-0 to list the tricolored blackbird (Agelaius tricolor) as a threatened species. A statewide survey conducted in 2017 estimated the California population of the species to be over 175,000 birds. The species is broadly distributed in California, occurring in roughly 40 counties, though the bulk of the population resides in the Central Valley.

The Center for Biological Diversity petitioned for the emergency listing of the species in 2015, based on a dramatic decline in population estimates from 2008 to 2011 and again ...

On April 3, 2018, the U.S. Fish and Wildlife Service (Service) published a final to rule listing the yellow lance mussel (Elliptio lanceolata) as threatened under the Endangered Species Act (ESA).  The final rule states that only seven populations of this freshwater mussel remain, all of which are located in Maryland, Virginia, and North Carolina.  The listing was prompted by a mega-petition filed by the Center for Biological Diversity and several other environmental organizations in 2010 that included the mussel.  In September 2015, after litigation had been filed regarding the ...

On August 25, 2015, the U.S. Fish and Wildlife Service (Service) published a proposed rule relating to the existing critical habitat for the marbled murrelet (Brachyramphus marmoratus).  The murrelet is listed as a threatened species under the Endangered Species Act (ESA).  The proposed rule does not purport to change the Service’s previous designation of critical habitat for the murrelet in 1996, as amended in 2011.  61 Fed. Reg. 26,256; 76 Fed. Reg. 61,599.

The Service is reconsidering its prior critical habitat determination pursuant to the U.S. District Court for the District ...